for the eastern district of pennsylvania …1 these undercover visits to dr. mckinney’s office...
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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA : CRIMINAL ACTION
v. :
LAURENCE T. McKINNEY, M.D. : NO. 09-234
MEMORANDUM RE: MOTIONS TO SUPPRESS
Defendant in this case has filed two motions to suppress evidence he alleges was
unlawfully obtained. Specifically, Defendant seeks to suppress the following: (1) statements he
made to law enforcement agents during a search of Defendant’s office on February 5, 2008;
(2) statements he made at a Drug Enforcement Agency (“DEA”) Administrative Hearing on
April 7, 2008; and (3) physical evidence obtained as a result of a search of Defendant’s office
and vehicle on February 5, 2008. After considering Defendant’s suppression motions and the
arguments contained therein, the Court denies Defendant’s motions to suppress.
I. Factual and Procedural Background
A. Facts
1. General Case History
Defendant, Dr. Laurence T. McKinney (“Dr. McKinney”), is a physician licensed in
Pennsylvania who operated the McKinney Medical Center, a solo practice located at 7514
Frankford Avenue in Philadelphia, Pennsylvania. Dr. McKinney was registered with the DEA,
DEA registration number BM7201267, to dispense to patients certain controlled substances. His
registration was set to expire on January 31, 2010.
In November 2007, the DEA began receiving complaints from several local pharmacies
1 These undercover visits to Dr. McKinney’s office occurred on December 4, 2007, December 14, 2007,January 3, 2008, January 18, 2008, January 22, 2008, and January 30, 2008.
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about receiving an excessive amount of prescriptions for Percocet and Xanax from Dr.
McKinney. Also in November 2007, the Philadelphia Police Department received a complaint
from an anonymous citizen regarding Dr. McKinney’s prescribing practices. The DEA’s
Diversion Unit and the Philadelphia Police Department’s Intensive Drug Investigative Squad
(“IDIS”) subsequently launched an investigation into Dr. McKinney’s prescribing practices.
During the investigation, numerous surveillances, including audio and video surveillances, were
conducted. Also during the investigation, undercover IDIS agents visited Dr. McKinney’s
medical office posing as patients in order to acquire prescriptions for controlled substances.1
These undercover visits were recorded with a “Hawk8A” transmitter/microphone/camera, and
DEA and IDIS agents who were positioned across the street from Dr. McKinney’s office during
the undercover office visits monitored the audio feed in real-time.
Also during the investigation, DEA obtained a Commonwealth of Pennsylvania Bureau
of Narcotics Investigation “BD6 report,” which identified more than 3,000 prescriptions for
certain controlled substances dispensed by pharmacies in Pennsylvania on the order or
prescription of Dr. McKinney from October 5, 2004 until November 30, 2006. DEA later sought
an opinion from an expert, a physician named “Dr. Woodie,” who concluded that Dr.
McKinney’s prescribing patterns, as evidenced in the BD6 report, were not consistent with the
dispensing of controlled substances for a legitimate medical purpose. Additionally, IDIS agents
observed Dr. McKinney and another individual making trips on multiple occasions from Dr.
McKinney’s office to his vehicle – a 1997 Mercedes-Benz sedan – and placing unidentified items
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in the vehicle’s glove compartment and trunk, or accessing the trunk area. The agents also
observed Dr. McKinney driving from his medical office to local banks during business hours.
As a result of the DEA/IDIS investigation, DEA Diversion Investigator James Corbett
(“DI Corbett”) prepared and compiled affidavits for search warrants for Dr. McKinney’s office
and vehicle. The search warrants were issued by United States Magistrate Judge Linda K.
Caracappa.
2. The Search
On February 5, 2008, shortly after 5:00 p.m., a team of approximately twenty (20) law
enforcement officers, including DEA and IDIS agents (the “agents”), executed the search
warrants upon Dr. McKinney’s medical office and vehicle. During the search, Dr. McKinney
was not handcuffed or restrained in any way, and was not isolated to any particular area of his
office. Dr. McKinney was specifically told that he was not under arrest, and he was not read his
Miranda rights. (2/4/10 Hearing Audio File #1 at 21:44-22:00 (Doc. No. 44).) When asked, the
agents told Dr. McKinney that he was free to leave at any time, but that the agents preferred he
remain in order to observe the search and secure his business and personal belongings that were
not the subject of the search. (2/4/10 Hearing Audio File #1 at 22:36-23:47 (Doc. No. 44).) DI
Corbett noted that Dr. McKinney appeared to be under the influence of alcohol or narcotics, as he
appeared to be sluggish and drowsy, and was slightly slurring his speech. When asked about this,
Dr. McKinney stated that he was not under the influence of alcohol or narcotics, but instead was
tired.
At approximately 6:00 p.m., the agents asked Dr. McKinney to voluntarily surrender his
DEA Certificate of Registration, which authorized Dr. McKinney to dispense certain controlled
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substances. Dr. McKinney responded that he wanted to speak with counsel before surrendering
his registration, but he was unable to reach counsel via telephone. Directly thereafter, agents
served Dr. McKinney with a notice of Immediate Suspension of Registration, which prohibited
Dr. McKinney from ordering, administering, prescribing, possessing, or dispensing any
controlled substance with his DEA registration.
During the search, Dr. McKinney assisted the agents by identifying patient files that were
closed and not covered by the warrant, and by identifying the supplier or distributor of the
controlled substances and medications found in his office. At some point during the search, DI
Corbett began conversing with and questioning Dr. McKinney. Dr. McKinney eventually told DI
Corbett that he no longer wished to speak to him or answer his questions.
Sometime after 9:00 p.m., DI Corbett approached Dr. McKinney and presented him with
a target letter informing Dr. McKinney that he was the target of a federal drug investigation. Dr.
McKinney again asked if he was being arrested, and DI Corbett responded that Dr. McKinney
was not being arrested at that time, although he stated his belief that Dr. McKinney could face
criminal charges at some point in the future. DI Corbett and Dr. McKinney then had a
conversation which lasted somewhere between thirty (30) and forty-five (45) minutes, in which
Dr. McKinney provided information about how he ran his medical practice.
The search concluded at approximately 10:00 p.m. As a result of the office search, the
agents seized, among other things, prescription medication, computer equipment, VHS tapes, and
thirty-one (31) boxes of medical records. As a result of the vehicle search, the agents seized
prescription pills and documents. The agents provided Dr. McKinney with a receipt for items
that were seized.
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3. DEA Administrative Hearing
On April 7, 2008, Dr. McKinney appeared before Administrative Law Judge (“ALJ”)
Mary Ellen Bittner at a DEA Administrative Hearing in Washington, D.C., to address the
suspension of Dr. McKinney’s DEA registration. Dr. McKinney was represented at this hearing
by Joseph Grimes, Esq. At the hearing, Dr. McKinney did not assert his Fifth Amendment
rights, and instead, testified as an adverse witness during the government’s case-in-chief. On
May 5, 2008, the ALJ issued her recommended decision against Dr. McKinney. On July 17,
2008, the Deputy Administrator adopted the ALJ’s conclusions of facts and law, concluding that
Dr. McKinney’s continued registration with the DEA would be inconsistent with the public
interest, and formally revoking Dr. McKinney’s DEA registration.
B. Procedural History
On April 8, 2009, a grand jury returned a forty-nine (49) count indictment charging that
between July 2007 and January 2008, Dr. McKinney distributed controlled substances in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and (b)(1)(D)(2), maintained a place for the illegal
distribution of a controlled substance in violation of 21 U.S.C. § 856(a)(1), and aided and abetted
the distribution of controlled substances in violation of 18 U.S.C. § 2.
On January 14, 2010, Defendant filed a Motion to Suppress Statements (Doc. No. 35),
which he supplemented later that day (Doc. No. 36). On January 21, 2010, Defendant filed a
Motion to Suppress Physical Evidence (Doc. No. 38). The government responded to
Defendant’s Motion to Suppress Statements on January 25, 2010 (Doc. No. 39), and to
Defendant’s Motion to Suppress Physical Evidence on January 28, 2010 (Doc. No. 41).
This Court held a hearing on February 4, 2010 to examine Defendant’s suppression
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motions, at which the Court heard testimony from DI Corbett (2/4/10 Hearing Audio File #1 at
03:02-1:04:30 (Doc. No. 44), and 2/4/10 Hearing Audio File #2 at 18:27-49:35 (Doc. No. 45))
and Joseph Grimes, Esq. (2/4/10 Hearing Audio File #2, at 00:30-17:20 (Doc. No. 45)).
Subsequently, the parties were instructed to submit further briefing on the suppression issues.
Defendant filed a Supplemental Brief in Support of Motions to Suppress Statements and Physical
Evidence on February 15, 2010 (Doc. No. 55), and augmented his Supplemental Brief via written
correspondence to the Court dated February 22, 2010. The government responded to
Defendant’s Supplemental Brief on February 22, 2010 (Doc. No. 56).
II. Analysis
A. Suppression of Statements Made to Law Enforcement Agents During theFebruary 5, 2008 Search of Dr. McKinney’s Office
In Defendant’s Motion to Suppress Statements, Supplemental Brief, and February 22,
2010 letter to the Court augmenting his Supplemental Brief, Defendant argued that the
statements he made to DEA and IDIS agents during the February 5, 2008 search: (1) were taken
in violation of Dr. McKinney’s rights under Miranda v. Arizona, 384 U.S. 436 (1966); (2) were
involuntary because the agents continued conversing with and questioning Dr. McKinney after he
asked to speak with counsel; and (3) were taken in violation of Edwards v. Arizona, 451 U.S.
477 (1981), because DI Corbett questioned Dr. McKinney on multiple occasions after Dr.
McKinney requested to speak to counsel.
The central principle established in Miranda is that “if the police take a suspect into
custody and then ask him questions without informing him of [his rights], his responses cannot
be introduced into evidence to establish his guilt.” Berkemer v. McCarty, 468 U.S. 420, 429
2 For purposes of determining whether Dr. McKinney was subject to custodial interrogation, the Court findsthat the questions posed to Dr. McKinney by the agents constituted an “interrogation.” An interrogation refers “toany word or actions on the part of the police (other than those normally attendant to arrest and custody) that thepolice should know are reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291,300 (1980). Here, the agents first asked Dr. McKinney to voluntarily surrender his DEA Certificate of Registration,subsequently served Dr. McKinney with a Notice of Immediate Suspension, and later presented Dr. McKinney witha target letter notifying him that he was the subject of a federal drug investigation. While the Court has not beenmade aware of the specific questions posed to Dr. McKinney by DI Corbett and/or other agents during the course ofthe search, the Court finds that the agents should have known that their questions to Dr. McKinney were reasonablylikely to elicit an incriminating response from him. This is not to say that the Court believes the agents were certainor knew that their questions would lead to an incriminating response, but only that their questions were reasonablylikely to elicit an incriminating response. For this reason, the questions asked of Dr. McKinney in this case qualifyas “interrogation.”
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(1984). Thus, constitutional protections against self-incrimination under the Fifth Amendment
are triggered only when a suspect is subject to “custodial interrogation.” Thompson v. Keohane,
516 U.S. 99, 102 (1995). Custodial interrogation occurs when law enforcement officials initiate
questioning “after a person has been taken into custody or otherwise deprived of his freedom of
action in any significant way.” Id. (quoting Miranda, 384 U.S. at 444). A defendant is in custody
when a reasonable person in the defendant's position would perceive that he or she is not free to
leave. Stansbury v. California, 511 U.S. 318, 325 (1994); see also Berkemer, 468 U.S. at 442
(when determining if a suspect is “in custody,” the only relevant inquiry is how a reasonable
person in the suspect's position would have understood his or her situation).
In the present case, both Defendant and the government correctly recognize that Miranda
is only implicated if Defendant was subjected to custodial interrogation. Nevertheless, the
parties dispute whether Dr. McKinney was in custody when he answered the agents’ questions
and made the statements he now seeks to suppress. It is the resolution of this question that
determines whether the statements made by Dr. McKinney during the search are admissible, or
must be suppressed.2
A person is in custody when he or she is arrested formally, or when his or her freedom of
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movement is restricted to the degree associated with a formal arrest. United States v. Willaman,
437 F.3d 354, 359 (3d Cir. 2006) (citation omitted). For a person to be in custody when he or
she has not been arrested, “something must be said or done by the authorities, either in their
manner of approach or in the tone or extent of their questioning, which indicates that they would
not have heeded a request to depart or to allow the suspect to do so.” Id. (quoting Steigler v.
Anderson, 496 F.2d 793, 799 (3d Cir. 1974)). “Custodial interrogation” is “not susceptible of an
exact definition; thus, the determination of whether statements are the product of such ‘custodial
interrogation’ must be made on a case-by-case basis.” United States v. Leese, 176 F.3d 740, 743
(3d Cir. 1999).
The Supreme Court has made clear that “the initial determination of custody depends on
the objective circumstances of the interrogation, not on the subjective views harbored by either
the interrogating officers or the person being questioned.” Stansbury, 511 U.S. at 323 (emphasis
added). The Third Circuit has set forth five factors to assist courts in determining whether a
person was in custody: (1) whether the officers told the suspect he was under arrest or free to
leave; (2) the location or physical surroundings of the interrogation; (3) the length of the
interrogation; (4) whether the officers used coercive tactics such as hostile tones of voice, the
display of weapons, or physical restraint of the suspect's movement; and (5) whether the suspect
voluntarily submitted to questioning. Willaman, 437 F.3d at 359-60 (citations omitted).
In conducting its analysis, the Court notes that Judge DuBois’ recent opinion in United
States v. Kofsky, 2007 WL 2480971 (E.D. Pa. Aug. 28, 2007), addressed a suppression motion in
a factual circumstance similar to the present case. Because the facts and analysis in Kofsky are
directly on-point, the Court finds Judge DuBois’ holding instructive in the present case. The
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Court will briefly explain the facts and holding in Kofsky below.
In Kofsky, the defendant was a practicing medical doctor charged with various crimes in
connection with his distribution of prescription diet pills through his medical practice. The
defendant filed motions to suppress evidence seized during searches of his residence, medical
office, safety deposit boxes, and vehicle, as well as to suppress statements he made to DEA and
Federal Bureau of Investigation (“FBI”) agents during the search of his residence. Id. at *1.
Regarding the statements made to DEA and FBI agents during the search of the defendant’s
residence, Judge DuBois held that the defendant was not in custody when he spoke with the
agents, and thus, the government was not required to give the defendant Miranda warnings, or
stop questioning him after the defendant requested to speak to counsel. Id. at *27-28.
In addressing the Third Circuit’s five factor test, Judge Dubois reasoned as follows: First,
the agents told the defendant he was not under arrest and was free to leave if he so desired. Id. at
*27. Second, the questioning took place in the kitchen of the defendant’s home, “and not in a
more coercive setting, such as a police station.” Id. Third, there was no evidence of “coercive
tactics such as hostile tones of voice, the display of weapons, or physical restraint of the suspect’s
movement.” Id. Fourth, the defendant voluntarily agreed to speak to the agents. Id. Fifth, the
defendant was permitted to move throughout the house while the search was being undertaken by
the agents. Id. Judge DuBois pointed out that while it is “not dispositive that the questioning
took place in [the defendant]’s home,” “the location clearly made it less likely, given the other
circumstances, that a reasonable person . . . would have felt he was unable to end the
questioning.” Id. at n.22 (quoting United States v. Vidal, 85 Fed. Appx. 858, 862 n.2 (3d Cir.
2004)).
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Judge DuBois then addressed the three coercive aspects to the search that the defendant
argued existed, and that the Judge agreed existed. First, Judge Dubois noted that the search was
conducted by “twenty-three agents, most of whom were armed, and who wore agency wind-
breakers or vests with agency initials.” Id. Second, the defendant had been physically restrained
and detained in the foyer of his home “for five to ten minutes at the start of the search.” Id.
Third, “agents accompanied [defendant] at all times [during the search] ‘to protect the integrity
of the search’ and for safety reasons.” Id. Judge DuBois ultimately held the following:
Having considered this evidence, the Court concludes that under the totalityof the circumstances[,] these coercive aspects of the search did not convertthe interview of [the defendant] into a custodial interrogation. The presenceof armed and uniformed agents and a brief detention during a protectivesweep are characteristics of many searches and do not create a custodialinterrogation per se. Moreover, although [an agent] testified that [thedefendant] was not free to go during the protective sweep of the residence,he did not handcuff [defendant], display any weapons, or state that[defendant] was not free to leave after the protective sweep. Under thecircumstances, the Court concludes that [defendant] was not “in custody” .. . and that [the agents] were not required to Mirandize him.
Id. at *27-28 (emphasis added) (internal citation omitted).
One additional factor that arose in Kofsky was that during the search, the agents
continued to question the defendant after he had asked to speak to counsel. Regarding this issue,
Judge DuBois held that “[u]nder the circumstances, the Court concludes that [the defendant] was
not ‘in custody’ . . . and that [the agents] were not required to Mirandize him. Accordingly, the
Court also rejects defendant's argument that the agents [were required] to stop questioning him
after he requested counsel.” Id. at *28 (emphasis added) (citing United States v. McNaughton,
848 F. Supp. 1195, 1200 (E.D. Pa. 1994) (holding that where defendant was not subject to
custodial interrogation, agent did not violate the Fifth Amendment by contacting defendant for
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questioning after defendant refused to answer questions without a lawyer present)).
In the present case, as in Kofsky, the Court begins its analysis by addressing the Third
Circuit’s five factor test to determine whether Dr. McKinney was in custody when he made the
statements he now seeks to suppress. First, the agents specifically told Dr. McKinney that he
was not under arrest and was free to leave, and did not handcuff or physically restrain him at any
time. These facts weigh against a finding of custody. Indeed, Third Circuit has stated that where
an agent informs a suspect that he or she is not under arrest, this fact weighs against a finding of
custody. See Reinert v. Larkins, 379 F.3d 76, 86 (3d Cir. 2004) (“Had [the officer] made an
explicit statement [to the suspect] that he was not under arrest or that he need not answer
questions, such a statement would surely have bolstered the government’s contention that [the]
questioning was non-custodial in nature.”); see also United States v. May, 87 Fed. Appx. 223,
227 (3d Cir. 2004) (finding a defendant was not “in custody” and thus was not subject to
custodial interrogation where “[t]he interview was conducted . . . in familiar surroundings – his
home. The police never indicated they would not heed a request to leave; on the contrary, [the
defendant] was told that he was not under arrest and that he could terminate the interview at any
time. Moreover, [the defendant]'s freedom of movement . . . was not restricted.”).
Second, the search took place in Dr. McKinney’s office, and not at a police station.
While not in the evidence, the government’s reply brief indicates that Dr. McKinney was living
in his office space at the time of the search, and had clothing, watches, and money present – facts
that Dr. McKinney does not dispute. Thus, that the search occurred in Dr. McKinney’s office –
the place where he both worked and resided at the time of the search – “militates against a
custody finding.” United States v. Hills, 2009 WL 5209407, at *6 n.14 (E.D. Pa. Dec. 23, 2009)
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(citing Vidal, 85 Fed. Appx. at 861 (the fact that federal agents questioned the suspect in his own
home “clearly made it less likely, given the other circumstances, that a reasonable person in [his]
position would have felt he was unable to end the questioning”); United States v. Czichray, 378
F.3d 822, 826 (8th Cir. 2004) (“[w]hen a person is questioned ‘on his own turf,’ . . . we have
observed repeatedly that the surroundings are ‘not indicative of the type of inherently coercive
setting that normally accompanies a custodial interrogation.’”); United States v. Ritchie, 35 F.3d
1477, 1485 (10th Cir. 1994) (“‘courts are much less likely to find [custody] when the
interrogation occurs in familiar . . . surroundings,’ such as the suspect's home”)).
Third, the Court notes that the length of time of the search – nearly five hours – weighs
slightly in favor of a finding of custody. Indeed, DI Corbett first began speaking to Dr.
McKinney early in the search, at around 6:00 p.m., and approximately three hours after Dr.
McKinney told DI Corbett that he did not wish to speak to him, DI Corbett again began speaking
with Dr. McKinney, at around 9:00 p.m. Even given the Court’s conclusion that the length of
time of the search weighs slightly in favor of custody, “courts have found interrogations lasting
anywhere from one and one-half to seven hours to be non-custodial.” United States v.
Killingsworth, 118 Fed. Appx. 649, 651-52 (3d Cir. 2004) (citing Beckwith v. United States, 425
U.S. 341, 342-45 (1976) (three hours); United States v. Wolk, 337 F.3d 997, 1006-07 (8th Cir.
2003) (an hour and twenty minutes); Czichray, 378 F.3d at 825 (seven hours); Leese, 176 F.3d at
744-45 (one hour)).
Fourth, the agents did not use coercive tactics such as hostile tones of voice or the display
of weapons, nor did they physically restrain Dr. McKinney. DI Corbett, in particular, did not
carry a weapon or handcuffs. Defendant argues that Dr. McKinney was guarded by an agent for
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the duration of the search who remained close to Dr. McKinney, including when Dr. McKinney
went outside to smoke a cigarette, and who waited outside the bathroom when Dr. McKinney
entered. The Court finds Judge DuBois’ holding in Kofsky on this point instructive: Judge
DuBois held that the fact that agents accompanied the defendant “at all times [during the search]
to protect the integrity of the search’ and for safety reasons” – a fact which Judge DuBois
acknowledged was a coercive element – did not convert the questioning into a custodial
interrogation. Id. at *28. Here, similarly, DI Corbett testified that an agent was assigned to stay
by Dr. McKinney during the search for security reasons, and to make sure that no evidence was
destroyed. The Court finds this to be a reasonable precaution taken by the agents on the scene
during the execution of a search warrant in a suspect’s office. Additionally, the Court points out
that in Kofsky, agents physically restrained the defendant for five to ten minutes at the start of the
search. Id. Here, Dr. McKinney was not physically restrained at any point.
Regarding the fifth factor – whether Dr. McKinney voluntarily submitted to questioning –
Defendant spends a great deal of his briefing arguing that Dr. McKinney’s statements were not
made voluntarily because he had asked to speak to counsel. The government, on the other hand,
argues that Dr. McKinney only sought to speak to counsel regarding the voluntary surrender of
his DEA Certificate of Registration, and that his answers to all of the questions posed to him
throughout the search were made voluntarily. In addressing this issue, the Court notes that the
evidence indicates that Dr. McKinney did express a desire to speak with counsel upon the agents’
request for him to voluntarily surrender his DEA Certificate of Registration, and at a later point
in time when DI Corbett was speaking with him, did indicate that he no longer wished to speak
with DI Corbett. Dr. McKinney also spoke to DI Corbett later in the search, after being
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presented with a federal target letter.
This factor is not, as Defendant seems to argue, dispositive to the issue of whether Dr.
McKinney was in custody. The Court believes that, after weighing the totality of the
circumstances in this case, Dr. McKinney was not in custody during the search of his office.
Thus, the fact that he asked to speak to counsel early in the search does not require suppressing
the statements he subsequently made to the agents. See Kofsky, 2007 WL 2480971, at *28 (after
finding that defendant was not in custody during the execution of a search warrant, the court
found it lawful for agents to question defendant after he had requested counsel, and statements
made in response to these questions were not suppressed (citing United States v. McNaughton,
848 F. Supp. 1195, 1200 (E.D. Pa. 1994))). Indeed, in McNaughton, Judge Brody stated:
[Defendant argues] that the government violated his rights under Miranda and[Edwards] when [an agent] re-initiated the questioning of [defendant] after[the defendant] had invoked his Fifth Amendment right to have counselpresent during questioning. . . . The protections of Miranda and Edwards,however, only apply to custodial interrogation. Because I have held that[defendant] was not subjected to custodial interrogation . . . I also hold that[the agent] did not violate the Fifth Amendment bycontacting [defendant] forfurther questioning after he had once refused to answer questions without alawyer present.
McNaughton, 848 F.Supp. at 1200 (emphasis added) (citing Arizona v. Roberson, 486 U.S. 675,
685 (1988) (the Fifth Amendment right to counsel during custodial interrogation is meant to
protect an accused against "the inherent pressures of custodial interrogation"); Edwards, 451 U.S.
at 482 (“Miranda thus declared that an accused has a Fifth and Fourteenth Amendment right to
have counsel present during custodial interrogation.”). Thus, here, because the Court finds that
Dr. McKinney was not in custody during the search of his office and therefore was not subject to
custodial interrogation, Dr. McKinney’s rights under Miranda and Edwards were not violated
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when the agents continued to question him after he requested to speak to counsel. See May, 87
Fed. Appx. at 227 (“Miranda warnings are only required if a statement was the product of
‘custodial interrogation.’”) (citing Miranda, 384 U.S. at 444); Brosius v. Warden, United States
Penitentiary, Lewisburg, PA, 278 F.3d 239, 249 (3d Cir. 2002) (“Edwards applies only where the
suspect makes a request for counsel while in custody. Here, because [petitioner] was not in
custody . . . , Edwards does not apply.” (citations omitted) (emphasis in original)).
For the aforementioned reasons, and after careful consideration of the facts and the
totality of the circumstances in the present case, the Court finds that Dr. McKinney was not in
custody during the search of his office on February 5, 2008. Therefore, any statements made by
Dr. McKinney in response to questioning by DI Corbett or any other agent during the search are
admissible at trial.
B. Suppression of Statements Made at DEA Hearing
Defendant next argues that Dr. McKinney’s statements at the DEA hearing should be
suppressed because Dr. McKinney’s testimony was not given voluntarily. Defendant argues that
Dr. McKinney’s failure to testify at the DEA hearing would have resulted “in the certain loss of
his livelihood” because “a doctor simply cannot function without the ability to prescribe
medicine.” (Def.’s Mot. to Suppress Statements at 7.) Defendant thus argues that because Dr.
McKinney “had to testify at the hearing in order to exonerate himself,” “this was a lose-lose
situation. . . . If Dr. McKinney failed to testify, an adverse inference could be drawn; if Dr.
McKinney testified[,] [the DEA prosecutor] had obtained a plethora of statements that he could
(and did) readily furnish to the government in the criminal prosecution.” (Def.’s Mot. to
Suppress Statements at 8.)
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The government responds by arguing that Defendant knowingly waived his Fifth
Amendment rights at the hearing, was represented by counsel, Joseph Grimes Esq., at the
hearing, and that at the suppression hearing before this Court, Mr. Grimes testified that he
discussed with Defendant the option of staying the DEA hearing until the criminal prosecution
was resolved, but Defendant elected to go forward with the DEA hearing. The government thus
argues that Defendant voluntarily chose to testify at the DEA hearing to prove that his DEA
registration to prescribe medicine should have been be reinstated, and thus voluntarily waived his
Fifth Amendment rights.
In deciding this issue, the Court notes that neither Defendant nor the government cites to
any relevant case law addressing the specific issue at hand. Defendant argues that the Supreme
Court’s holding in Garrity v. State of New Jersey, 385 U.S. 493 (1967), applies to the facts at
issue here. The Court disagrees, and finds that Defendant’s reliance on Garrity is misplaced.
In Garrity, 385 U.S. 493 (1967), the Supreme Court assessed whether a state government
could use the threat of discharge to obtain inculpatory statements from its employees. There,
police officers subject to internal investigation were asked self-incriminating questions, and were
told that their refusal to answer the questions would result in their discharge. Id. at 497 (“The
choice imposed on petitioners was one between self-incrimination or job forfeiture.”). The
Supreme Court held that if a public employee has to choose between either self-incrimination or
termination of his or her employment, the employee’s privilege against self-incrimination has
been violated: “We now hold the protection of the individual under the Fourteenth Amendment
against coerced statements prohibits use in subsequent criminal proceedings of statements
obtained under threat of removal from office.” Id. at 500 (emphasis added).
3 The Court notes that administrative fact-finders are generally permitted to draw adverse inferences from adefendant’s failure to testify. “[T]he prevailing rule is that the Fifth Amendment does not forbid adverse inferencesagainst parties to civil actions when they refuse to testify in response to probative evidence offered against them: theAmendment ‘does not preclude the inference where the privilege is claimed by a party to a civil cause.’” Baxter v.Palmigiano, 425 U.S. 308, 318 (1976) (quoting 8 J. Wigmore, Evidence 439 (McNaughton rev. 1961) (emphasis inoriginal)).
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The present case is distinguishable from Garrity. It is true that here, as in Garrity, Dr.
McKinney was faced with a choice: At the DEA hearing, he either could have chosen to assert
his Fifth Amendment rights, knowing that the ALJ properly could have drawn an adverse
inference from his failure to testify,3 or he could have chosen to testify at the hearing, and risk
making incriminatory statements. Either way, the choice faced by Dr. McKinney is
distinguishable from the choice faced by the police officers in Garrity, where the police officers
were forced to either testify, or assert their Fifth Amendment privilege and face immediate job
termination.
Indeed, the facts here are more akin to those in Baxter v. Palmigiano, 425 U.S. 308
(1976), where the Supreme Court held that a prison disciplinary proceeding did not violate an
inmate’s Fifth Amendment privilege, in part, because the State had not “insisted [nor] asked that
[the inmate] waive his Fifth Amendment privilege,” and it was “undisputed that an inmate's
silence in and of itself [was] insufficient to support an adverse decision by the Disciplinary
Board.” Id. at 317-318 (emphasis added). The Supreme Court has distinguished Garrity from
cases like Baxter “because in [Garrity] the ‘refusal to submit to interrogation and to waive the
Fifth Amendment privilege, standing alone and without regard to other evidence, resulted in loss
of employment or opportunity to contract with the State,’ whereas [the inmate in Baxter]’s
silence ‘was given no more evidentiary value than was warranted by the facts surrounding his
case.’” McKune v. Lile, 536 U.S. 24, 60-61 (2002) (emphasis added) (citations omitted). The
18
Supreme Court has stated:
[Baxter] involved an administrative disciplinary proceeding in which therespondent was advised that he was not required to testify, but that if he choseto remain silent his silence could be considered against him. Baxter did nomore than permit an inference to be drawn in a civil case from a party'srefusal to testify. Respondent's silence in Baxter was only one of a numberof factors to be considered by the finder of fact in assessing a penalty, andwas given no more probative value than the facts of the case warranted; [incases like Garrity], refusal to waive the Fifth Amendment privilege [led]automatically and without more to imposition of sanctions.
Lefkowitz v. Cunningham, 431 U.S. 801, 808 n.5 (1977). In the present case, as in Baxter – and
unlike in Garrity – Dr. McKinney’s potential silence was only one of a number of factors to be
considered by the ALJ when making her determination, and his potential silence would have
been given no more probative value than the facts of his case warranted.
Garrity having been distinguished, the Court now addresses the specific issue of whether
the statements made by Dr. McKinney at his DEA hearing must be suppressed at his subsequent
criminal trial. While this exact legal question has not been addressed by the Supreme Court or
Third Circuit, various Circuit Courts of Appeals have dealt with the analogous issue of whether
statements made at an administrative hearing can be lawfully admitted at a subsequent criminal
trial where a defendant faced the same pressures that Dr. McKinney claims to have faced at his
DEA hearing. While these cases are not binding on this Court, their guidance is instructive, and
their holdings are therefore adopted for purposes of resolving this question.
In Arthurs v. Stern, 560 F.2d 477 (1st Cir. 1977), a Massachusetts physician accused of
writing illegal prescriptions brought an action in federal court to require that the Massachusetts
disciplinary board suspend disciplinary proceedings against him until criminal charges arising out
of his alleged activities were disposed of. Id. at 478. The physician argued that:
19
[T]he disciplinary board would draw an adverse inference from his silence ifhe invoked his privilege against self-incrimination at the [disciplinaryboard’s] hearing. The threat of losing his license . . . would force him totestify, . . . and mak[e] statements that might be used against him in thecriminal trial.
Id. In evaluating the physician’s claim, the First Circuit held that there was “[nothing] inherently
repugnant to due process in requiring the doctor to choose between giving testimony at the
disciplinary hearing, a course that may help the criminal prosecutors, and keeping silent, a course
that may lead to the loss of his license.” Id. at 478-79 (emphasis added).
Similarly, in Keating v. Office of Thrift Supervision, 45 F.3d 322 (9th Cir. 1994), the
United States Office of Thrift Supervision (“OTS”) – the federal agency charged with regulating
federal savings associations – held a hearing, the result of which was that the plaintiff was
banned from the federally insured banking industry and was required to pay nearly thirty-six (36)
million dollars in restitution. Id. at 324. The plaintiff appealed to the Ninth Circuit, arguing,
inter alia, that his due process rights were violated by OTS’ refusal to stay the hearing until after
the conclusion of state and federal criminal proceedings because the pending criminal
proceedings forced him to invoke his Fifth Amendment privilege during the hearing, thus
depriving him of an opportunity to testify on his own behalf. Id. The Ninth Circuit found the
plaintiff’s argument “unpersuasive,” holding that “[a] defendant has no absolute right not to be
forced to choose between testifying in a civil matter and asserting his Fifth Amendment
privilege. . . . [I]t is permissible to conduct a civil proceeding at the same time as a related
criminal proceeding . . . .” Id. at 326 (emphasis added).
Here, Dr. McKinney’s argument uses the same logic as the arguments set forth in Arthurs
20
and Keating: Dr. McKinney argues that he was forced to choose at the hearing whether to
(1) testify, and risk making incriminatory statements that could be admissible in a subsequent
criminal prosecution, or (2) assert his Fifth Amendment privilege and risk the trier of fact
drawing an adverse inference from his silence. In light of the Circuit Court holdings in Arthurs
and Keating, and in light of the Supreme Court’s decisions which distinguish Garrity from cases
like the present case, the Court finds that the statements made by Dr. McKinney at the DEA
hearing are admissible in the current criminal prosecution against him, and that his Fifth
Amendment rights were not violated when he chose to testify at the DEA hearing. As the Fifth
Circuit stated in Luman v. Tanzler, 411 F.2d 164 (5th Cir. 1969), cert denied 396 U.S. 929
(1969), a case where a suspended police officer sought to have his administrative hearing
continued in light of pending criminal proceedings against him, “[a]t the administrative hearing
[the officer] will have a free choice to admit, to deny, or to refuse to answer. This is full
vindication of the Fifth Amendment privilege against self-incrimination.” Id. at 167 (footnote
omitted) (emphasis added). Here, similarly, Dr. McKinney, while fully represented by counsel at
his DEA hearing, was able to choose whether or not he wanted to testify. Thus, Dr. McKinney
was able to fully vindicate his Fifth Amendment rights.
C. Suppression of Physical Evidence Obtained During Search of Office andVehicle
Defendant argues that the facts set forth in the affidavits did not indicate a fair probability
that evidence of illegal drug distribution would be found in Dr. McKinney’s office or vehicle.
Specifically, Defendant argues that the affidavits lacked probable cause because: (1) there was
nothing about the circumstances of the undercover visits that would warn a reasonable person
21
that an offense had been committed; (2) while the affidavits put great weight on the fact that the
officers paid in cash for their appointments, there is nothing illegal per se about doctors accepting
cash payments for their services; (3) the search of the office and vehicle was overbroad; and
(4) the good faith exception to exclusionary rule does not apply.
The government counters that the warrant was supported by probable cause, arguing that
the affidavits were extraordinarily detailed and provided ample probable cause for the searches,
and that, in any event, the “good faith” exception to the exclusionary rule, as adopted in United
States v. Leon, 468 U.S. 897 (1984), applies. Further, the government argues that the search
warrant satisfied the particularity requirement of the Fourth Amendment, and was not overly
broad.
1. Probable Cause
A magistrate judge may find probable cause when, viewing the totality of the
circumstances, “there is a fair probability that contraband or evidence of a crime will be found in
a particular place.” United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001) (quoting Illinois v.
Gates, 462 U.S. 213, 238 (1983)). When a warrant is issued and later challenged, “a deferential
standard of review is applied in determining whether the magistrate judge's probable cause
decision was erroneous.” United States v. Ninety-Two Thousand Four Hundred Twenty-Two
Dollars and Fifty-Seven Cents, 307 F.3d 137, 146 (3d Cir. 2002). The reviewing court inquires
whether there was a “substantial basis” for finding probable cause, as “after-the-fact scrutiny by
courts of the sufficiency of an affidavit should not take the form of de novo review.” Id. Under
governing precedent, “[d]irect evidence linking the place to be searched to the crime is not
required for the issuance of a search warrant.” Hodge, 246 F.3d at 305 (quotation omitted).
22
Instead, probable cause can be, and often is, “inferred by ‘considering the type of crime, the
nature of the items sought, the suspect's opportunity for concealment[,] and normal inferences
about where a criminal might hide’ the fruits of his crime.” Id. (quotation omitted). The
resolution of “doubtful or marginal cases in this area should be largely determined by the
preference to be accorded to warrants.” Ninety-Two Thousand, 307 F.3d at 146-47.
After review, the Court finds that the affidavits were not so deficient in probable cause as
to leave the magistrate judge without a substantial basis upon which to conclude that there was a
fair probability that evidence of Dr. McKinney’s alleged criminal activity would be found in his
office or vehicle. To the contrary, the affidavits provided great detail regarding Dr. McKinney’s
potentially criminal prescribing practices that had been extensively investigated by experienced
law enforcement agents. The affidavits summarized Dr. McKinney’s suspected unlawful
conduct; described the applicable laws pertaining to prescribing controlled substances; described
physician responsibilities with regard to distributing and dispensing controlled substances,
particularly with regard to obtaining a patient’s medical history and maintaining prior records;
and summarized the DEA/IDIS investigation by providing details of the agents’ undercover visits
to Dr. McKinney’s office and the surveillance conducted outside Dr. McKinney’s office, which
included descriptions of patient foot traffic, the duration of time patients spent inside the office,
and Dr. McKinney’s actions regarding placing items into his vehicle and driving the vehicle from
his office to local banks.
First and foremost, the affidavits describe several instances where undercover IDIS agents
visited Dr. McKinney’s medical practice, paid him $100 for the visit, and obtained prescriptions
for controlled substances without a medical examination, without Dr. McKinney referring to any
23
patient or medical file, or without providing Dr. McKinney with a medical condition or injury.
The Court’s review of the audio transcripts of these undercover visits indicates that these
instances did occur. The Court briefly describes some of these instances below, all of which
were discussed in the affidavits:
• On January 3, 2008, Officer Floyd visited Dr. McKinney’s office using thename “Anthony Wilson.” Neither Dr. McKinney nor his nurse could findOfficer Floyd’s patient file or medical chart from his prior visit on December14, 2007, but when Officer Floyd asked Dr. McKinney “I don’t have to fillout the paperwork again, or did she find my file?”, Dr. McKinney responded“No, that’s alright. . . . I saw it the other day . . . .” (TR. 1/3/2008 N-6, at14:48:29.) Dr. McKinney subsequently prescribed Xanax and Percocet.
• On January 18, 2008, Officer Floyd again visited Dr. McKinney’s officeusing the name “Anthony Wilson.” Again, Dr. McKinney did not have orconsult a patient file or medical chart for Officer Floyd. Dr. McKinney’scursory examination of Officer Floyd consisted of Dr. McKinney stating:“Stand up facing me and try to bend down and touch you[r] toes. Come backup. Alright, have a seat. Looks like you’re doing a little bit better, huh?”(TR. 1/18/2008 N-8, at 19:53:45.) Dr. McKinney subsequently prescribedXanax and Percocet.
• On January 18, 2008, Officer Arnold visited Dr. McKinney’s office using thename “Richard Johnson.” Officer Arnold did not fill out a basic patientinformation or medical history form. It was Officer Arnold’s first visit to Dr.McKinney’s office, but Officer Arnold said he was a returning patient. Aftera brief examination, Dr. McKinney asked “[h]ow you been doing since I putyou on pain medication?”, to which Officer Arnold replied “[p]retty good.”(TR. 1/18/2008 N-9, at 19:02:37.) Dr. McKinney did not refer to any patientfile or medical chart, and stated: “Okay, what I’m going to do is refill yourmedication.” (TR. 1/18/2008 N-9, at 19:02:37.) Dr. McKinneysubsequentlyprescribed Xanax and Percocet.
• On January 22, 2008, Officer Corporal Judge, using the name “NicoleHodge,” and Officer Coyne, using the name “John Rio,” visited Dr.McKinney’s office. It was Officer Coyne’s first visit to Dr. McKinney’soffice, but he stated that he was a returning patient. After being directed toan examination room, Officer Coyne paid for both himself and OfficerHodge. He was then directed by Dr. McKinney to remove his shirt, afterwhich Dr. McKinney touched Officer Coyne’s neck and back. Dr. McKinney
24
did not inquire as to whether Officer Coyne had any symptoms or the reasonfor his office visit, but instead stated “you have back pain, right?” (TR.1/22/2008 N-12, no timestamp listed.) Without referring to any patient fileor medical chart, Dr. McKinney prescribed Xanax, Percocet, and Flexeril, anon-controlled substance.
• On January 30, 2008, Officer Floyd again visited Dr. McKinney’s office.While he was waiting in the waiting room, Dr. McKinney came out to thewaiting room and stated: “Who’s [here] for prescription refills?” (TR.1/30/2008 N-15, at 19:49:22.) When Officer Floyd approached Dr.McKinney, he stated “last time I ha[d] my wife with me, but she couldn’tmake it today, can I pick up her script for her?” (TR. 1/30/2008 N-15, at19:56:00.) Dr. McKinney replied: “Your wife yeah, you can do that onetime.” (TR. 1/30/2008 at 19:56:00.) Dr. McKinney did not examine OfficerFloyd, or refer to any patient files or medical charts for Officer Floyd or hisficticious wife. Officer Floyd then paid for both himself and his ficticiouswife, and Dr. McKinney wrote prescriptions for Xanax and Percocet forOfficer Wilson and his ficticious wife.
These audio transcripts show that the affidavits provided evidence that Dr. McKinney
prescribed controlled substances in instances where he did not review a patient file or medical
chart, performed only a cursory examination or no examination at all, or prescribed medication
for a patient not physically present at his office. This indicates that the affidavit was not a “bare
bones document,” as the magistrate judge had significant evidence upon which to conclude that
evidence of Dr. McKinney’s potentially unlawful prescribing practices would be found at his
office.
Second, regarding Dr. McKinney’s vehicle, the affidavit indicates that during that the
DEA/IDIS investigation, surveillance observed Dr. McKinney making trips from his office to his
vehicle and placing items in the vehicle’s glove compartment and/or trunk. Given the suspected
illegal activity occurring inside Dr. McKinney’s office, and the fact that Dr. McKinney was seen
putting items into his car and driving to local banks, the Court finds that there was sufficient
25
probable cause to issue a search warrant for Dr. McKinney’s vehicle, as there was a fair
probability that evidence of Dr. McKinney’s alleged crimes would be found in the vehicle.
Third, Defendant argues that even if probable cause existed that evidence of a crime
would be found at Dr. McKinney’s office, the search of the office and the vehicle was overbroad
because the search should have been limited to evidence of the treatment of the undercover
officers when they visited the office, thus making the seizure of thirty-one (31) boxes of medical
records unwarranted. The Court does not agree.
The affidavit listed the specific items to be seized from Dr. McKinney’s office, which
included, among others, from October 5, 2004 through the present: all patient charts; all
appointment books and patient records; all billing and claim records for patient visits; all records
of purchases and prescriptions of controlled substances; all employee records; all payment
records relating to Dr. McKinney’s medical practice; all audit reports and/or inventory logs
relating to controlled substances purchased and/or dispensed and/or prescribed; and financial and
tax records relating to funds received from patients. While the list of items sought was indeed
lengthy, and resulted in the government seizing a large volume of documents, this fact alone does
not merit suppression. As the Third Circuit has made explicitly clear: “The Fourth Amendment
does not prohibit searches for long lists of documents or other items provided that there is
probable cause for each item on the list and that each item is particularly described.” Ninety-
Two Thousand, 307 F.3d at 148 (emphasis added).
Here, there was a fair probability that evidence of Dr. McKinney’s alleged crimes would
be found in the various files and documents sought by the government, including the thirty-one
(31) boxes of medical files. Additionally, each item sought was particularly described in the
26
affidavits. “Although the scope of the warrant was certainly extensive, the warrant [itself] was
not general,” because it described in “inclusive generic terms what [was] to be seized.” Id. at
149. The Court therefore finds that the affidavits contained sufficient probable cause to merit the
seizure of the files and documents set forth in the affidavit, and thus, the warrant was not
overbroad. See id. (defining an overly broad warrant as one which “authorizes the seizure of
items as to which there is no probable cause.” (emphasis added)). For this reason, the
government’s seizure of thirty-one (31) boxes of medical files was lawful.
2. Good Faith
Even if the affidavit did not establish probable cause to believe that evidence of
Dr. McKinney’s alleged crimes would be found in his office or vehicle, the Court still would not
suppress the evidence because the good faith exception to the exclusionary rule, as set forth in
Leon, 468 U.S. 897 (1984), applies here. Pursuant to the good faith exception, the suppression of
evidence “is inappropriate when an officer executes a search in objectively reasonable reliance on
a warrant's authority.” United States v. Williams, 3 F.3d 69, 74 (3d Cir. 1993). The Supreme
Court developed the exclusionary rule to deter unlawful police conduct. Leon, 468 U.S. at 906.
However, where law enforcement officers act in the “objectively reasonable belief that their
conduct d[oes] not violate the Fourth Amendment,” “the marginal or nonexistent [deterrent]
benefits produced by suppressing evidence obtained in objectively reasonable reliance on a
subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Id. at
918, 922. Thus, if an officer has obtained a warrant and executed it in good faith, “there is no
police illegality and thus nothing to deter.” Id. at 921.
“The test for whether the good faith exception applies is ‘whether a reasonably well
27
trained officer would have known that the search was illegal despite the magistrate's
authorization.’” United States v. Loy, 191 F.3d 360, 367 (3d Cir. 1999) (quoting Leon, 468 U.S.
at 922 n.23). The Third Circuit has made clear that “[t]he mere existence of a warrant typically
suffices to prove that an officer conducted a search in good faith[,] and justifies application of the
good faith exception.” Hodge, 246 F.3d at 307-308 (3d Cir. 2001) (citing Leon, 468 U.S. at
922). Nevertheless, the Third Circuit has identified four narrow situations in which an officer's
reliance on a warrant is not reasonable and therefore does not trigger the good faith exception:
(1) when the magistrate judge issued the warrant in reliance on a deliberatelyor recklessly false affidavit;(2) when the magistrate judge abandoned his judicial role and failed toperform his neutral and detached function;(3) when the warrant was based on an affidavit “so lacking in indicia ofprobable cause as to render official belief in its existence entirelyunreasonable;” or(4) when the warrant was so facially deficient that it failed to particularize theplace to be searched or the things to be seized.
Ninety-Two Thousand, 307 F.3d at 146.
In the present case, Defendant does not contend that the affidavit contained deliberately
or recklessly false information, that the Magistrate Judge abandoned her judicial role, or that the
warrant failed to particularize the place to be searched or the things to be seized – exceptions
one, two, and four. Instead, Defendant seems to rely on the third exception, arguing that the
affidavit was so lacking in indicia of probable cause as to render official belief in the warrant's
legality entirely unreasonable. For this exception to apply, Defendant must show “not just that
the Magistrate Judge erred in issuing the search warrant at issue, but that the Magistrate Judge's
error was so obvious that a law enforcement officer, without legal training, should have realized,
upon reading the warrant, that it was invalid and should thus have declined to execute it.” Id.
28
Here, as the Court’s above-stated probable cause analysis has already shown, the
affidavits at issue in this case contained sufficient indicia of probable cause to support the
magistrate judge's finding of probable cause. See, e.g., Hodge, 246 F.3d at 309. Even if this
were not the case, the warrants at-issue were “neither so general nor so plainly in violation of the
particularity requirement that the executing officers could not have reasonably trusted in [their]
legality.” Id. At the very least, a reasonably well-trained law enforcement agent could have
believed that there was adequate probable cause to support the search of Dr. McKinney’s office
and vehicle. Therefore, the Court cannot conclude that the warrants so lacked the requisite
indicia of probable cause such that it was “entirely unreasonable” for the agents to believe
otherwise. Because the agents executed the search in objectively reasonable reliance on validly-
issued warrants, the good faith exception applies. Leon, 468 U.S. at 922.
For the aforementioned reasons, the Court finds that the search of Dr. McKinney’s office
and vehicle was supported by probable cause. Further, the Court finds that the warrants were
executed by the agents in good faith reliance on validly issued search warrants.
III. Conclusion
For the foregoing reasons, the Defendant’s motions to suppress will be denied.
An appropriate Order follows.
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29
IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA : CRIMINAL ACTION
v. :
LAURENCE T. McKINNEY, M.D. : NO. 09-234
ORDER
AND NOW, this 12th of March, 2010, for the reasons set forth in the foregoing
memorandum, it is hereby ORDERED that Defendant’s Motions to Suppress Statements and
Physical Evidence (Doc. Nos. 35 and 38) are DENIED.
BY THE COURT:/s/ Michael M. Baylson
Michael M. Baylson, U.S.D.J.
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